Minuskin, J.J.D.R.C. Horn, J.A.D. (dissenting).
This case raises the novel question of whether the Juvenile and Domestic Relations Court has statutory jurisdiction to hear and dispose of matters of nonsupport wherein the husband has custody of the children and seeks support for his children from his former wife. In pertinent part N.J.S.A. 2A:4-18 states:
The juvenile & domestic relations court shall also have jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a summary manner disputes and complaints:
(b) Involving matters of support or temporary custody of children as to which jurisdiction is vested in superior court.
(e) Involving the domestic relation, where a husband or father deserts his wife or child even though they continue to live in the same household, in which case the court may order adequate support of his wife, child or family.
(f) Involving the domestic relation, where a husband or father forces his wife or child to leave the home because of his cruel and inhuman conduct, in which case the court may provide by appropriate order for their support and maintenance.
We are concerned with the scope of concurrent jurisdiction of this court within the bounds of these statutory limitations. As a statutory tribunal, the court has no inherent power or authority, nor may jurisdiction be conferred by consent. Its powers and jurisdiction are conferred by Legislature and are strictly limited to the subject matter set forth by statute. Compton v. Compton , 109 N.J. Super. 5, 8 (App. Div. 1970); Linder v. Linder , 126 N.J. Super. 466 (App. Div. 1974).
This jurisdictional issue arises in the following factual context. The parties involved were married and resided in New York. They obtained a divorce in New York on April 23, 1971, wherein custody of the two minor children was awarded wife, and the husband was ordered to pay for their support. Subsequently, on an informal basis, the wife surrendered custody of the two children to her former
husband. Both parties have since remarried and are now living in New Jersey. Plaintiff husband now brings this action in the Juvenile and Domestic Relations Court pursuant to N.J.S.A. 2A:4-18 seeking support from his former wife for his two children. At the hearing on March 7, 1978 counsel for defendant asserted that the Juvenile and Domestic Relations Court is without jurisdiction to determine the non-support matter herein.
Counsel for defendant relies on N.J.S.A. 2A:4-18(e) and (f) in his effort to defeat this court's jurisdiction. Defendant asserts that as the court's jurisdiction in matters of nonsupport is strictly limited, the provisions refer specifically to support by the husband, and nowhere in the statute is there a provision for this court to compel a mother to pay for the support of her children; that the Juvenile and Domestic Relations Court is without jurisdiction and the complaint should be dismissed.
Counsel for plaintiff contends that this court has the same authority as the Superior Court to order support, including ordering support from the former wife, and authority is granted by N.J.S.A. 2A:4-18(b). He further contends that a narrow interpretation of the statute which would deny the husband the right of redress before this court would violate both N.J. Const. (1947), Art. I, par. 5, and the United States Constitution , Amend. XIV, by discriminating against the husband due to his status.
There is much merit to plaintiff's charge of unconstitutionality. The statute which was applicable to the traditional lifestyle when promulgated may no longer reflect the family structure in contemporary times. It is quite likely that a woman may be the chief provider for her family. A statute providing for support and which differentiates on the basis of sex may very well be unconstitutional. However, as a general premise, to declare a statute unconstitutional is a judicial power to be delicately exercised, ...